Archibuild Australia v Council of the City of Sydney [1988] NSWLEC 8

Land and Environment Court of New South Wales

CITATION : Archibuild Australia v Council of the City of Sydney [1988] NSWLEC 8 APPLICANT Archibuild Australia PARTIES : RESPONDENT Council of the City of Sydney

FILE NUMBER(S) : 20625 of 1987 CORAM: Hemmings J KEY ISSUES: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 07/08/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: The respondent Council makes application for orders that the orders of this court made on 26th February, 1988 in this matter be "set aside", or alternatively that the time in which an appeal therefrom may be instituted be extended pursuant to Div.8 s.17 of the Land & Environment Court Rules. The said orders were made after the determination of an objection by an Assessor on the same date.

The applicant appeared by an agent and the transcript indicates that there was no appearance of the respondent, that this absence was noted but no evidence given as to service, and after a short hearing the application was upheld.

The applicant again appears by the same agent and at issue is whether the learned Assessor should have made an enquiry as to whether the non-appearance of the respondent was a consequence of proper service or service at all of the application. I note that the file does not contain a notice of appearance, nor any record of an appearance prior to the matter being listed for hearing. The respondent submits that the learned Assessor thereby made an error of law and denied it "procedural fairness".

I am satisfied that an arguable and important question of law is raised and that, in the circumstances, this is an appropriate case to extend time for making of the appeal. It is also clear that the applicant should not be further disadvantaged by delay and that the hearing of this appeal be expedited.